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IN THE

SUPREME COURT OF THE UNITED STATES


MARATHON ENTERTAINMENT, INC and RICK SIEGEL
Appellants and Petitioner,
VS.
FOX & SPILLANE, GERARD P. FOX and JAY SPILLANE
Defendants and Respondents,
Petition for Certiorari to Supreme Court of California
FOR A WRIT OF CERTIORARI
Rick Siegel
Pro Per
3379 Tareco Drive
Los Angeles, CA 90068
-
Pro Per for Appellant and Petitioner,
RICK SIEGEL
QUESTIONS PRESENTED FOR REVIEW
Despite the California Talent Agencies' Act having no civil sanction and
expressly stating that no violation of the Act is to be considered criminal, those
found to have procured employment for an artist without a talent agency license
are stripped of their rights to salaried commissions.
The petitioners ask this Court to consider:
Does meting out penalties for engaging in an activity bereft of notice of
any consequence for engaging in that activity violate the Due Process and Equal
Protection Clauses of the 14th Amendment?
Does disgorging the right to be paid for one labors of those who have
been duly found of committing a civil infraction itself violate the 13
th
Amendment
of the United States Constitution?
Does a licensing scheme defme activity or in any way restrict activity to
licensees when there is neither notice of any activity being restricted to licensees
nor notice that the unlicensed engagement of that activity is subject to penalty?
2
LIST OF PARTIES
(1) Marathon Entertainment, Inc.; Appellant
(2) Rick Siegel; Appellant and Petitioner
(3) Fox & Spillane; Respondent
(4) Gerard P. Fox; Respondent
(5) Jay Spillane; Respondent
3
TABLE OF CONTENTS
Questions Presented For Review ....................... .
List Of Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Table of Contents .................................. .
Table of Authorities ................................ .
Opinions Below ................................... .
Junsdlctlon ...................................... .
Constitutional Provisions, Statutes and
Regulations at Issue ................................ .
Reasons Why Certiorari Should be Granted ............. .
I. Review Is Warranted Because The Enforcement Of
California's Talent Agencies' Act Violates The Due
Process Clause Of The Fourteenth Amendment Of
2
3
4
5
ii
...
111
-H-
.....
The United States Constitution. . . . . . . . . . . . . . . . . . . . . 10
II. Review Is Warranted Because The Enforcement Of
California's Talent Agencies' Act Violates The Equal
Protection Clause Of The Fourteenth Amendment Of
The United States Constitution And Does Not In Any
Way Define Or Restrict Activity . . . . . . . . . . . . . . . . . . . . 13
III. Review Is Warranted Because California's Enforcement
Of The Talent Agencies' Act Violates The Thirteenth
Amendment Of The United States Constitution ............ 18
IV. Review Is Warranted To Correct A Misapplication Of
Enforcement That Has Wrongly Compromised A
Generation Of Personal Managers .......................... .
Conclusion ....................................... .
Certificate of Word Count ........................... .
7

4
FEDERAL CASES
BMW of America v. Gore
TABLE OF AUTHORITIES
517 U.S. 559 (1995) ................................................ .
Conally v General Construction Co.
269 U.S. 385 (1926) ................................ .
Interstate Circuit, Inc. v City of Dallas
390 U.S. 676 (1968) ................................ .
Lambert v. CA.
355. U.S. 225, (1957) ............................................... .
Lanzetta v New Jersey
306 ~ S . 451 (1939) ................................ .
Preston v. Fe"er
. 52 U.S. 346, 128 S.Ct. 978 (2008) ................................ .
u.s. v. Evans
(1948) 333 U.S. 483, 68 S. Ct. 634, 92 L. Ed. 823 ............. .
Winters v. New York
333 U.S. 507 (1948) ................................ .
STATE CASES
Armenta v. Churchill
(1954) 42 Ca1.2d 448 ................................ .
Buchwald v. Katz
(1972) 8 Cal. 3d 493 ................................. .
Dyna-Med, Inc v. Fair Employment & Housing Comm.
(1987) 43 Cal.3d 1379, 1385-1388 ................................ .
Loving & Evans v Blick
(1949) 33 Cal. 2d 603 ................................................ .
Marathon Entertainment, Inc. v. Blasi
(2008) 42 Cal.4th 974 ............................... .
Marathon Entertainment, Inc. v. Fox & Spillane
B224686 (2011) .................................... .
Moore v. California State Bd. of Accountancy
(1992) 2 Cal.4th 999 ........................... .
New Jersey v. Fair Lawn Service Center, Inc.
(N.J. 1956) 120 A.2d 233 .......................................... .
People v. Rogers
(1971) 5 Cal.3d 129 ................................. .
Wood v. Krepps
(1914) 168 Cal. 382 ................................................... .
21
13
~ 1 3
%-14,)$(1
-H- 11,
JKl7
13
5
STATUTES
Business and Professions Code section 1270 ................... 15
Business and Professions Code section 2050 ................... 15-16
Business and Professions Code section 2901 ................... 14
Business and Professions Code section 2903 ................... 14
Business and Professions Code section 2970 ................... 14
Business and Professions Code section 2971 ................... 14
Business and Professions Code section 4320 ................... 16
Business and Professions Code section 5051 ................... 14
Business and Professions Code section 5058 .................... 14
Business and Professions Code section 5615 ................... 14-15
Business and Professions Code section 5640 ................... 14-15
Business and Professions Code section 6980.10 ................. 15
Business and Professions Code section 7027 ................... 15
Business and Professions Code section 7028 ................... 15
Business and Professions Code section 7031 .................... 15
Business and Professions Code section 7492 .................... 16
Business and Professions Code section 8554 .................... 16
Business and Professions Code section 9678 .................... 16
Business and Professions Code section 9852 .................... 16
Business and Professions Code section 9884.16 ................. 16
Business and Professions Code section 10136 . . . . . . . . . . . . . . . . . .. 16
Business and Professions Code section 15006 ................ , ... 16
Labor Code section 1700 et seq .......................................... 19
Labor Code section 1700.4(a) ............................... 5-6, 13
Labor Code section 1700.5 ................................. 6, 13
Labor Code section 1700.30 ................................................. 18
Labor Code section 1700 .44(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 18
CONSTITUTIONAL ARTICLES, AMENDMENTS
Article 1, Section 10 of the United States Constitution ............ 19-20
Thirteenth Amendment to the U.S. Constitution ................ 5, 18, 19
Fourteenth Amendment to the U.S. Constitution ................ 5,9, 11, 17
OTHER REFERENCES
Final History of Assembly Bill No. 2535 ...................... 18
Report 0/ the CA. Entertainment Commission .................. 10
Virginia Law Review, Vol. 59, No.6 (Sept. 1973)
Occupational Licensing . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4
University o/Pennsylvania Law Review Vol. 67 (1960)
The Void-For-Vagueness Doctrine in the Supreme Court . ... 9
Witkin, Summary o/Cal. Law (1960) ......................... 13
6
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.
OPINIONS BELOW
[ ] For cases from federal courts:
The opinion of the United States court of appeals appears at Appendix to
the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
The opinion of the United States district court appears at Appendix to
the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[ ] is unpublished.
[V'J For cases from state courts:
The opinion of the highest state court to review the merits appears at
Appendix I to the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[0 is unpublished.
The opinion of the A-P PEL-LA,-e: STATE court
appears at Appendix 2-.- to the petition and is
[ ] reported at ; or,
[ ] has been designated for publication but is not yet reported; or,
[v1 is unpublished.
1.
JURISDICTION
[ ] For cases from federal courts:
The date on which the United States Court of Appeals decided my case
w ~ __________________
[ ] No petition for rehearing w ~ timely filed in my case.
[ ] A timely petition for rehearing ~ denied by the United States Court of
Appeals on the following date: , and a copy of the
order denying rehearing appears at Appendix __ _
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including (date) on (date)
in Application No. _A __ _
The jurisdiction of this Court is invoked under 28 U. S. C. 1254(1).
~ For c ~ e s from state courts:
The date on which the highest state court deciled my case was 1 ecs:,..lII' If, l.611
A copy of that decision appears at Appendix .
[ ] A timely petition for rehearing ~ thereafter denied on the following date:
__________ , and a copy of the order denying rehearing
appears at Appendix ___ ,
[ ] An extension of time to file the petition for a writ of certiorari was granted
to and including (date) on (date) in
Application No. _A __ _
The jurisdiction of this Court is invoked under 28 U. S. C. 1257(a).
. ..
III
CONSTITUTIONAL PROVISIONS, STATUTES AND
POLICIES AT ISSUE
Thirteenth Amendment of the United States Constitution
Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction.
Fourteenth Amendment of the United States Constitution
Section 1: All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.
CA. Labor Code 1700: The Talent Agencies Act
The California Talent Agencies' Act is a set of statutes created to protect
the interests of artists working in California. The relevant statutes:
1700.4. (a) "Talent agency" means a person or corporation who engages in the
occupation of procuring, offering, promising, or attempting to procure employment or
engagements for an artist or artists, except that the activities of procuring, offering, or
promising to procure recording contracts for an artist or artists shall not of itself subject
a person or corporation to regulation and licensing under this chapter. Talent agencies
may, in addition, counselor direct artists in the development of their professional
careers.
7
1700.5. No person shall engage in or carry on the occupation ofa talent agency without
first procuring a license therefor from the Labor Commissioner. The license shall be
posted in a conspicuous place in the office of the licensee. The license number shall be
referred to in any advertisement for the purpose of the solicitation of talent for the talent
agency. Licenses issued for talent agencies prior to the effective date of this chapter
shall not be invalidated thereby, but renewals of those licenses shall be obtained in the
manner prescribed by this chapter.
1700.44 (b) Notwithstanding any other provision of law to the contrary, failure of any
person to obtain a license from the Labor Commissioner pursuant to this chapter shall
not be considered a criminal act under any law of this state.
OPINIONS BELOW
The CA. Supreme Court denied the petitioners' petition for review of a
California Court of Appeal affirmation of a Los Angeles Superior Court denial
of the petition to vacate an Arbitration Award.
The original Arbitration Award rejected the petitioners' malpractice,
breach of contract, breach of fiduciary duty and constructive fraud claims. The
Appellants, as the parties' arbitration agreement allowed, appealed the fmdings
of the Award to an appellate arbitrator, alleging, among other things, that the
original award does not make a determination, as contracted to do, on the
fundamental issue of malpractice whether the failure to raise the 'no penalty'
argument was below the standard of care and caused the Appellants to lose three
T AA cases it otherwise would have won. Instead the original award states, "one
cannot say with certainty that but for the alleged conduct that was below the
standard of care, Marathon and Siegel would have obtained a more favorable
result."
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REASONS WHY CERTIORARI SHOULD BE GRANTED
Every child learns that two wrongs don't make a right. An incorrect legal
precedent turns that concept on its ear. One incorrect ruling relevant to the
enforcement of licensing relevant to the California Talent Agencies Act,
("T AA") has led to over forty years of wrong determinations.
In Buchwald v. Katz (1972) 8 Cal. 3d 493 ("Buchwald"), the California
Supreme Court upheld a California Labor Commission determination that
Matthew Katz, the Jefferson Airplane's personal manager, had unlawfully
engaged in unlicensed activities and thus violated the Artists' Managers Act,
1
and in doing so forfeited his right to contract.
The ruling was wrong on several levels. It found that Mr. Katz had no
right to demand arbitration, despite the parties having agreed to arbitrate
disputes, because it "overlook[ ed] the basic contention of petitioners that their
agreement with Katz is wholly invalid because of his noncompliance with the
Act. If the agreement is void no rights, including the claimed right to private
arbitration, can be derived from it." (Id. at p. 501) That ruling was the guiding
precedent for 36 years, wrongly mooting personal managers right to arbitrate,
until this court in Preston v. Ferrer, 552 U.S. 346, 128 S.Ct. 978 (2008)
corrected that error, finding that such arbitration clauses were to be enforced.
I At the time, California referred to talent agents as artist's managers. In 1978, California retitled the
licensing scheme to the Talent Agencies' Act, to better differentiate talent agents from personal managers.
9
The granting of Certiorari is similarly needed to correct the Buchwald
court's primary determinations, that (1) the Act regulates activity - as detailed
below, it does not - and (2) that California's Labor Commission and courts have
the statutory authority to interfere with anyone's right to be paid for their labor-
that as the legislature did not codify a penalty, neither courts nor the
administrative agency has the right to penalize.
I.
Review Is Warranted Because The Enforcement Of California's Talent
Agencies' Act Violates The Due Process Clause Of The Fourteenth
Amendment Of The United States Constitution
For a statute to be constitutional there has to be clarity as to: (1) who is
affected by the statute, (2) the conduct that is regulated, and (3) the consequence
for ignoring the regulation:
"The due process clause [of] the fourteenth amendment
requires a statute be declared void when it is so vague that "men
of common intelligence must guess at its meaning and differ as to
its application ... " Conally v General Construction Co., 269 U.S.
385,391 (1926). Undue vagueness in the statute will result in its
being held unconstitutional whether the uncertainty goes to the
persons within the scope of the statute, Lanzetta v New Jersey,
306 U.S. 451 (1939); the conduct which is forbidden, Interstate
Circuit, Inc. v City o/Dallas, 390 U.S. 676 (1968); Winters v.
New York, 333 U.S. 507 (1948); or the punishment which may be
imposed, United States v Evans, 333 U.S. 483 (1948). See
generally Note, The Void-For-Vagueness Doctrine in the Supreme
Court, U. Pa. L. Rev. 67 (1960).
Occupational Licensing, U. Va. L. Rev. Vol. 59, pg. 1104 (1973).
The California Talent Agencies Act leaves uncertainty relevant to all
three of these bars to constitutionality.
10
In 1982, the California Legislature ...
"provisionally amended the Act to impose a one-year statute
of limitations, eliminate criminal sanctions for violations of the
Act, and establish a "safe harbor" for managers to procure
employment if they did so in conjunction with a licensed agent.
(Fonner 1700.44, as enacted by Stats. 1982, ch. 682, 3, p.
2815; Entertainment Com. Rep., supra, at pp. 8,38-39.) It
subjected these changes to a sunset provision and established the
10-person California Entertainment Commission (Entertainment
Commission), consisting of agents, [personal] managers, artists,
and the Labor Commissioner, to evaluate the Act and
"recommend to the Legislature a model bill." (Fonner 1701-
1704, added by Stats. 1982, ch. 682, 6, p. 2816, repealed by its
own tenns, Jan. 1, 1986.) In 1986, after receiving the
Entertainment Commission Report, the Legislature adopted its
recommendations, which included making the 1982 changes
pennanent and enacting a modest series of other changes. (Stats.
1986, ch. 488, pp. 1804-1808; Entertainment Com. Rep., at pp.
22-34; Sen. Com. on Industrial Relations, Analysis of Assem. Bill
No. 3649 (1985-1986 Reg. Sess.) as amended Apr. 15, 1986, p. 5
[bill would implement Entertainment Commission's
recommendations "in full"].) So the Act has stood, with minor
modifications, for the last 20 years."
Marathon Entertainment v. Blasi (2008) 42 Cal. 4th 952, 965.
The pennanent repeal of the penalty and addition of 1700.44(b), stating
that no crime could be committed for violating the Act, was recommended after
the Entertainment Commission concluded there was ...
" ... an inherent inequity - and some question of
constitutional due process - in subjecting on to criminal sanctions
in violation of a law with is so unclear and ambiguous as to leave
reasonable persons in doubt about the meaning of the language or
whether a violation has occurred.
'''Procure employment' is just such a phrase ... the
uncertainty of knowing when such activity mayor not have
occurred ... has left the personal manager uncertain and highly
apprehensive about the pennissible parameters of their daily
activity. "
(Appendix J{, Report of the CA. Entertainment Commission, p. 25.)
Lf
11
The legislative history inarguably shows that the Legislature knew that
with 1986's permanent removal of the penalty statute, the TAA would have
neither a criminal nor civil remedy. (Id) Thus, even if one found unlawfulness to
the activity of unlicensed procurement of employment for an artist, assigning
any penalty for that action is legally unsupportable: "a task outside the bounds of
judicial interpretation." (United States v. Evans Supra at 495.)
"Engrained in our concept of due process is the requirement of notice.
Notice is sometimes essential so that the citizen has the chance to defend
charges. Notice is required before property interests are disturbed, before
assessments are made, before penalties are assessed." (Lambert v. CA. 355 U.S.
225,228 (1957).)
"Elementary notions of fairness enshrined in this Court's constitutional
jurisprudence dictate that a person receive fair notice not only of the conduct that
will subject him to punishment but also of the severity of the penalty that a State
may impose." (BMW of America v. Gore 517 U.S. 559, 574 (1995).)
"Where a statute fails to provide a penalty it has been uniformly held that
it is beyond the power of the court to prescribe a penalty." (New Jersey v. Service
Center, Inc. (N.J. 1956) 120 A.2d 233,236.)
Without a penalty provision giving notice of any, no less the severity of
what penalty California can impose for the unlicensed procurement of
employment for an artist, California's meting out penalties for such violations is
12
in disharmony with all the above holdings and violative of the due process clause
of the 14th Amendment of the United States Constitution.
ll.
Review Is Warranted Because The Enforcement Of California's Talent
Agencies' Act Violates The Equal Protection Clause Of The Fourteenth
Amendment Of The United States Constitution And Does Not In Any Way
Def"me Or Restrict Activity
The Court of Appeal found the Petitioners' argument neither the Labor
Commission nor court had the statutory right to address "violations of the T AA or to
void manager-talent contracts that violate the Act ...
" ... meritless ... Labor Code section 1700.44 specifically
provides the Labor Commission authority to hear disputes arising
under the TAA. The TAA, in turn, "defines conduct, and hence
contractual arrangements, that are illegal: An unlicensed talent
agency may not contract with talent to provide procurement
services. (Labor Code, 1700.4 subd. (a), 1700.5)" (Blasi, supra,
42 Cal.4th at p. 991.) Under the Civil Code, contracts based on an
unlawful purpose are void. (See Civ. Code, 1596, 1598, 1599.)
Thus, the Labor Commission has explicit authority to hear matters
arising under the T AA and to void contracts that violate the Act's
provisions. The fact that the Legislature elected to remove criminal
liability for violations of the T AA simply means that neither the
Labor Commission nor the courts may impose criminal penalties
for violations of the T AA."
(B224686, th. 8, page 21-22, emphasis added)
This finding is based upon the Buchwald holding that, "Since the clear
object of the Act is to prevent improper persons from becoming artists' managers
and to regulate such activity for the protection of the public, a contract between
an unlicensed artists' manager and an artist is void. (See Wood v. Krepps, 168
Cal. 382, 386 [143 P. 691, L.R.A. 1915B 851]; Loving & Evans v. Blick, 33 Cal.
13
2d 603, 608-609 [204 P.2d 23]; 1 Witkin. Summary olCal. Law (1960)
p. 185.)
However, though found first by the Labor Commissioner and affirmed by
the Buchwald court and in every court determination concluding that
1700.4(ai and 1700.5
3
(of both the Artists' Managers and Talent Agencies'
Acts) defines conduct and regulates activity is legally unsupportable.
1700.4(a) defmes the responsibilities/activities of the regulated
occupation and 1700.5 states that one must have a license to engage in the
licensed occupation. Moore v. California State Bd 01 Accountancy (1992) 2
Cal.4th 999 (Moore) examined completely analogous statutes. Like the T AA, it
defines what an accountant does and that one must have a license to call oneself
an accountant. Like the TAA, California's Accountancy Act has no statute
stating that only licensees can engage in the defmed activities of an accountant.
Moore holds that the statutory construction prohibits one from "assum[ing] or
us[ing] any title or designation 'likely to be confused' with the two official titles
reserved for licensed accountants: 'certified public accountant' and 'public
accountant' ( 5058)," but specifically does not limits any activity associated
with accounting to those with accounting licenses.
2 "'Talent Agency' means a person or corporation who engages in the occupation of procuring, offering, promising, or
attempting to procure employment or engagements for an artist or artists, except that the activities of procuring, offering, or
promising to procure recording contracts for an artist or artists shall not of itself subject a person or corporation to
regulation and licensing under this chapter. Talent agencies may, in addition, counselor direct artists in the development of
their professional careers
3 In its relevant part: "No person shall engage in or carry on the occupation of a talent agency without first
procuring a license therefor from the Labor Commissioner."
14
Likewise, Business and Professions Code section 2903 defines "practice of
psychology" as the "rendering or offering to render for a fee to individuals,
groups, organizations or the public any psychological service involving the
application of psychological principles, methods, and procedures of
understanding, predicting, and influencing behavior."
Yet, teachers, salespeople, motivational speakers, life coaches and others
are free to utilize psychological principles to influence behavior without worry of
punishment, so long as they do not claim to be licensed psychologists. Those who
do violate the "Psychology Licensing Law" and guilty of a misdemeanor,
punishable by imprisonment and, or, a fine, and stoppable by injunction (Bus. and
Prof. Code 2901, 2970, 2971), a notice of penalty that does not exist in the
Talent Agencies Act.
Similarly, gardeners and landscape designers openly and lawfully engage
in the conduct defined as being that of a landscape architect for which a license is
required, 4 but they only face criminal sanction if they claim to be a landscape
architect,
5
again notice of penalty that does not exist in the Talent Agencies Act.
Like the occupational licensing schemes above, the Contractors' State
Licensing Law, Bus. and Prof. Code 7000 et seq ("CSLL") has statutes that
define "contractor" by the activities in which contractors engage. Unlike the T AA
4 Business and Professions Code 5615: "A person who practices landscape architecture within the meaning and intent of
this article is a person who offers of performs professional services, for the purpose of landscape preservation,
development and enhancement .... "
5 See Bus. and Prof. Code 5640.
15
and the above-mentioned schemes, however, the CSLL statutorily memorializes
that only those with licenses, and in some cases, additional certifications, may
lawfully engage in the defined activities.
6
The CSLL also gives notice that engaging in the activities of a contractor
without having a contractors' license is a misdemeanor 7 and results in loss of
rights to "collection of compensation for the performance of any act or contract
were a license is required by this chapter." 8
Similarly to the State Contractors' Act, Bus. and Prof. Code 1270(a)
requires one to acquire a cytotechnologist license before performing cytological
slide examinations; 6980.10 makes it unlawful to engage in the activities ofa
locksmith without a valid locksmith license; 2050 et seq. makes it a crime to
prescribe drugs or render treatment without a "physician's and surgeon's
certificate"; and among other similar laws, 4320 et seq. criminalizes the
dispensation of pharmaceuticals by unlicensed persons. As engaging in any of
these defmed activities without an appropriate license is criminal and subjects the
transgressor to loss of contractual rights, such licensing schemes do define and
regulate conduct.
The majority of licensing schemes statutorily prohibit unlicensed entities
from suing to enforce their contracts for engaging in the regulated activities: real
estate brokers (Bus. & Prof. Code, 10136), alarm companies (id. at 7492.5),
6 Bus. and Prof. Code 7027-7028.
7 Bus. and Prof. Code 7028(a).
8 Bus. and Prof. Code 7031.
16
structural pest control operators (id. at 8554), cemetery brokers and
salespersons (id. at 9678), electronic and appliance repair dealers (id. at
9852), automotive repair dealers (id. at 9884.16) and insurance adjusters (Ins.
Code, 15006). But all schemes that in fact do regulate activity, save the T AA is
enforced, include statutes not only clearly giving notice to what the regulated
activity is, but also notice of a penalty for engaging in those activities.
The Talent Agencies Act is California's only licensing scheme that
punishes non-licensees without a statute that limits the engaging of an activity to
licensees. Per the doctrine of ejusdem generis, adjudicators are to determine
legislative intent by interpreting terms listed or grouped in statutes "similar in
nature and scope." (See Moore at pp. 1011-1012, citing People v. Rogers (1971)
5 Ca1.3d 129, 142 and other authorities.) As such, the TAA should be enforced as
the other licensing schemes that do not regulate or defme activity.
The Equal Protection Clause provides that "no state shall ... deny to any
person within its jurisdiction the equal protection of the laws." California's courts
and labor commission robs unlicensed talent representatives, in particular
personal managers, the same protection under the law that all other occupations
receive - notice that one must have a license before engaging in an activity
intrinsic to their vocation.
While never legally defmed by any court, the personal manager serves as
the chief executive officer for the artist, overseeing and working with the artist's
17
publicist (VP of public relations), business manager (VP of finance), transactional
attorney (VP of business affairs), and assorted television and film, literary, music,
publishing and personal appearance agents (the vice-presidents of sales).
Procuring employment is the only way for the Artist to gamer revenue. To
prohibit a CEO from being part of the revenue generation of the entity he
represents in essence outlaws the occupation; at a minimum the state must
provide notice that one must have a license to engage in such activities, as
California does in all other licensing schemes that do in fact regulate activity.
Failing to do so, does not, as the 14th Amendment demands, provide personal
managers the same access to the safety of law that all other workers in the state of
California.
III.
Review Is Warranted Because California's Enforcement Of The Talent
Agencies' Act Violates The Thirteenth Amendment Of The United States
Constitution
The only penalty ever codified into the Artists' Managers Act is
1700.30. It is the statute later removed by the California Legislature when it
was 1700.30 of the Talent Agencies' Act. It had nothing to do with the
activity of procuring employment opportunities for artists:
"No licensee shall sell, transfer or give away any interest
in or the right to participate in the profits of the artists'
manager [talent agency after the Talent Agencies' Act was
codified on January 1, 1979] without the written consent of
the Labor Commissioner. A violation of this section shall
18
constitute a misdemeanor, and shall be punishable by a fine of
not less than one hundred dollars ($100) nor more than five
hundred dollars ($500), or imprisonment for not more than 60
days, or both."
See Appendix B, Final History of Assembly Bill No. 2535, pg. 13.
So though enforced as if there was a penalty for such unlicensed
activity, the California legislature never limited the activity of procuring
employment for an artist to licensed talent agents. Even had it been their
intention, as the legislature never codified any consequence to procurement
without a license, such acts could never be considered criminal. The Act
itself removes any lingering doubt that no activity related to the act can be
considered criminal: "Notwithstanding any other provision of law to the
contrary, failure of any person to obtain a license from the Labor
Commissioner pursuant to this chapter shall not be considered a criminal act
under any law of this state." (CA Labor Code 1700.44 (b))
The 13
th
Amendment of the United States Constitution states:
''Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the
United States, or any place subject to their jurisdiction."
The personal manager is hired, supervised, paid and fired by the
artist, and is paid exclusively via commissions through a percentage, usually
between 10 and 20%, of the artist's income. It is those commission
payments to the personal manager that over one hundred times, costing the
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personal management perhaps a half-billion dollars ($500,000,000), has
been wrongly disgorged by the labor commission. Procuring employment
for an artist without a talent agency is not unlawful, and by disgorging the
manager's right to their salary without criminality, the decades-long
enforcement has violated the precept that our country was so willing to
guarantee that no Americans be subjected to involuntary servitude, "except
as a punishment for a crime whereof the party have been duly convicted of a
crime," that we were willing to fight a civil war. Here, just the granting of
review would eradicate the problem.
IV.
Review Is Warranted To Correct Renegade Enforcement
That Has Wrongly Compromised A Generation Of Personal Managers
The California Labor Commission is an administrative agency that
continually accepts petitions for controversies and metes out punishment
despite hornbook law disallowing such actions: "An administrative agency
cannot by its own regulations create a remedy which the Legislature has
withheld." (Dyna-Med, Inc. v. Fair Employment & Housing Comm. (1987)
43 Cal. 3d at 1385-1388.)
"The general rule is that' [w ]here the enabling statute is
essentially remedial, and does not carry a penal program
declaring certain practices to be crimes or provide penalties or
[mes in vindication of public rights, an agency does not have
discretion to devise punitive measures such as the prescription of
penalties or fines. The statutory power to command affirmative
action is remedial, not punitive.' ... see also Youst v. Longo
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(1987) 43 Cal.3d 64,82-83 [233 Cal.Rptr. 294, 729 P.2d 728]
[where regulatory scheme provides for one kind of relief and is
silent on another, it should be construed to exclude the
latter].)" (Jd)
There is no way to tell why the Labor Commission chose to disgorge
Matthew Katz's contractual rights to some $12,000,000 in commissions
otherwise owed him by the Jefferson Airplane. But the resulting Buchwald v.
Katz decision, which substantially impaired a legal, contractual relationship
,and therefore was arguably violative of Article 1, Section 10 of the United
States Constitution, the Contract Clause, created an avalanche of decisions
that has wrongfully barred personal managers of their right to be paid their
salaried commissions for now some 45 years.
This is not even close. A California legislative body found that there
was too much uncertainty as to what created unlawfulness to mete out
penalties, and in agreement, the state legislature adopted their
recommendations and eliminated the sole penalty associated with the Talent
Agencies Act. So clearly the enforcement of the T AA does not pass the bar
for clarity as to either what conduct is being regulated and what the penalty is
for ignoring that regulation. Clearly the meting out of penalties is not in
accord with the uniformly held law that there cannot be penalties meted out
when there is no notice of such. And as stated above, the Labor
Commission's continued creation of penalties - and if Certiorari is granted
the Petitioners will show the arbitrary nature of how the Labor Commission
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..
has morphed the severity of the remedy over time without any statutory
guidance - is opposite to longstanding state law.
Even if California's enforcement is affinned, review will allow
personal managers to know why they can be penalized without notice and
why their compensation can taken away without having committed a criminal
act. With that knowledge, the thousands toiling in that profession can know
with confidence how to proceed - whether or not they must, for the sakes of
their and their families' futures, find a new line of work.
CONCLUSION
Based on the foregoing, Petitioners respectfully submit that this
Petition for Writ of Certiorari should be granted. The Court may wish to
consider summary reversal of the decision of the California Supreme Court
and remand the parties back to a California Superior Court.
Dated March 7, 2012
Respectfully Submitted,

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CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, rule 8.204(c)(1
The text of this brief, including footnotes (but excluding tables, this
certificate, and appendices), consists of 4,122 words as counted by the
Microsoft Word word-processing program used to generate the brief.

Rick Siegel
Pro Per for Rick Siegel
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